ANATOMY OF A LAWSUIT – Part III
Once the Pleadings are closed (complete) and the Discovery is finished, the parties will usually engage in discussions to attempt a resolution of their dispute. These discussions will involve a review of the pros and cons of each party’s claims and defenses in an effort to make the other see that their claims are not as strong as they may think. This process often results in the parties reaching a compromise of their claims and come to a resolution somewhere between the Plaintiff winning everything or the Defendant winning everything. During this process it is important for the attorney to take into account not only the legal claims, but also the human elements that play out in proceeding with the litigation because anything can happen in a court room once the matter is submitted to a decision by a judge or jury. Just because someone believes strongly in their claims and thinks they will win, does not guarantee them a win. Furthermore, the attorney has to consider and advise the client of other factors, like the time value of money if trial is in the distant future. For example, if the case is worth $10,000 but the Defendant is only offering $9,000 and will not increase the offer short of trial, is it worth the risk of losing it all, or for that matter delaying the recovery until a trial that may still be a year or more away? A further consideration is always the possibility that the losing party at trial will file an appeal of the judgment, which will add to the costs to their client (the costs and attorney’s fees of an appeal are not usually included in the original representation by your attorney) and cause additional lengthy delays to a final resolution.
If the parties cannot reach a settlement agreement themselves, then they can request the matter be assigned to a pre-trial. At a pre-trial, a judge will meet with the attorneys who will present the judge with a short summary of their claims and defenses and the judge, based on this informal information and his independent evaluation of the case, will make a recommendation for settlement. The judge will then discuss his/her views of the case with each of the attorneys separately to evaluate the likelihood the Plaintiff would accept the judge’s recommended settlement proposal, and to see if the Defendant would be willing to make a payment in accordance with that proposal. At times this triggers more negotiations and even a resolution of the dispute. If the pretrial does not resolve the case, the parties can still proceed to trial. However, there are other ADR (Alternative Dispute Resolutions) alternatives such as Mediation or Arbitration that may bring the case more rapidly to resolution which will be the subject of my next blog.